[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
No. 08-12997
Non-Argument Calendar
________________________

ELEVENTH CIRCUIT
APRIL 24, 2009
THOMAS K. KAHN
CLERK

D. C. Docket No. 06-23086-CV-CMA

PAULETTE ROXBURY-SMELLIE,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 24, 2009)
Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Paulette Roxbury-Smellie appeals from the district courts grant of summary
judgment in favor of the Florida Department of Corrections (FDOC) in her
employment discrimination suit filed pursuant to Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e-2(a), in which Roxbury-Smellie, a Black Bahamian

female, had alleged that her employer, the FDOC, had fired her on the basis of her
race and national origin. On appeal, Roxbury-Smellie argues that: (1) the district
court abused its discretion when it refused to apply the public records hearsay
exception to statements made by Roxbury-Smellies co-workers; and (2) the
district court erred when it granted summary judgment in favor of the FDOC.
After careful review, we affirm.
We review a district courts evidentiary rulings for abuse of discretion, and
will reverse only if the movant establishes that the ruling resulted in substantial
prejudice. Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th
Cir. 2004). In applying the standard, we will affirm unless the district court has
made a clear error of judgment or has applied an incorrect legal standard. Id.
(quotations omitted). We review a district courts grant of summary judgment de
novo.

Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006).

Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and
compels judgment as a matter of law in favor of the moving party. Id. at 836-37.
First, we find no merit to Roxbury-Smellies claim that the district court
abused its discretion when it refused to apply the public records hearsay exception

to her co-workers statements during their interviews with an Equal Employment

Opportunity Commission (EEOC) investigator. A court should not consider
inadmissable hearsay introduced to defeat summary judgment when that hearsay
will not be reducible to admissible form at trial.
Services, 92 F.3d 1130, 1135 (11th Cir. 1996).

Pritchard v. Southern Co.

Statements that fall within an

exception to the hearsay rule can be considered by a district court when it rules on
a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1323 (11th
Cir. 1999). The Federal Rules of Evidence create an exception to the hearsay rule
for [r]ecords, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth . . . factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of information or
other circumstances indicate lack of trustworthiness. Fed. R. Evid. 803(8)(C).
The statements made by Roxbury-Smellies co-workers, Kerlande Aboite
and Silvia Escobar, did not fall into the public records exception because they were
not a factual finding made by the EEOC investigator, but rather a record of the
interviews conducted by the EEOC investigator.

Id.

Accordingly, the district

court did not abuse its discretion when it determined the interview notes did not
fall within the hearsay exception for public records.

We also reject Roxbury-Smellies argument that the district court erred in

granting summary judgment in favor of the FDOC. Title VII makes it unlawful for
an employer to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individuals race, color, religion, sex, or national
origin. 42 U.S.C. 2000e-2(a). To establish a prima facie case for disparate
treatment in a race discrimination case, the plaintiff must show that: (1) she is a
member of a protected class; (2) she was subject to an adverse employment action;
(3) her employer treated similarly situated employees outside of her protected class
more favorably than she was treated; and (4) she was qualified to do the job.
Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citing
EEOC v. Joes Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000)).
Where, as here, the plaintiff seeks to establish her disparate treatment claim
using indirect or circumstantial evidence, we evaluate the claim using the burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Burke-Fowler, 447 F.3d at 1323. Under McDonnell Douglas, the
plaintiff carries the initial burden of establishing a prima facie case of
discrimination. 411 U.S. at 802. If the plaintiff establishes a prima facie case of
discrimination, then the burden shifts to the defendant to show a legitimate, non-

discriminatory reason for its employment action.

Burke-Fowler, 447 F.3d at

1323. If the employer is able to meet its burden, the plaintiff must then show that
the proffered reason is merely a pretext for discrimination. Texas Dept of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981).
In order to establish a prima facie case of discrimination, the plaintiff may
show that [her] employer treated similarly situated employees outside [her]
classification more favorably. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997) (citing Coutu v. Martin Cty. Bd. of Cty. Commissioners, 47 F.3d 1068, 1073
(11th Cir. 1995)). In evaluating whether employees accused of misconduct are
similarly situated, we look to whether the employees are involved in or accused of
the same or similar conduct and are disciplined in different ways. Burke-Fowler,
447 F.3d at 1323 (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999)). We require that the quantity and quality of the comparators misconduct
be nearly identical to prevent courts from second-guessing employers reasonable
decisions and confusing apples with oranges. Id. (quotations omitted).
Where evidence of similarly situated employees is unavailable, the plaintiff
is required to produce other circumstantial evidence of discrimination to establish
her prima facie case of disparate treatment.

See Holifield, 115 F.3d at 1562

(holding that [i]f a plaintiff fails to show the existence of a similarly situated

employee, summary judgment is appropriate where no other evidence of

discrimination is present (emphases omitted)).
Roxbury-Smellie failed to meet her burden of establishing a prima facie case
of discrimination.

As the record shows, the three individuals Roxbury-Smellie

identified as being similarly situated to her -- Phyllis Gainer, Adam Thomas, and
Marvin Williams -- did not engage in misconduct that was nearly identical to the
threatening comments she was terminated for making to her supervisor. Gainer,
who was only reprimanded, merely hung up the phone on her supervisor during a
heated conversation. Thomass misconduct -- an arrest for domestic violence -took place outside of the office and did not involve a superior or fellow co-worker,
and furthermore, Roxbury-Smellie did not offer any evidence of the FDOCs
disposition of Thomass case.

Lastly, although Wilson is a black islander like

Roxbury-Smellie, Roxbury-Smellie did not produce any evidence as to his

misconduct or the FDOCs subsequent actions with regard to that misconduct.
The other evidence Roxbury-Smellie submitted also was not sufficient to
establish a prima facie case of discrimination. She relied on the testimony of Lydia
Martinez to prove that her supervisor, Marilyn Tift, bore feelings of racial
animus towards black Bahamians.

However, while Martinezs testimony

indicated that there was some racial disharmony in the office where she and

Roxbury-Smellie worked, it did not provide any evidence that the FDOC made any
employment decisions based on race or national origin.
Moreover, the statements made by Aboite and Escobar to the EEOC would
not have established a prima facie case of discrimination if they had been admitted
into evidence. Aboite said in her interview that Tift had a problem with Spanish
employees, but that she had never heard Tift say anything negative about RoxburySmellie or Bahamians specifically. Similarly, Escobar said in her interview that
she had heard rumors that Tift did not like Hispanics, but like Aboite, she made no
statements regarding the treatment of Roxbury-Smellie specifically or Bahamians
in general. As a result, these two statements, if admitted into evidence and viewed
in the light most favorable to Roxbury-Smellie, still do not establish a prima facie
case of discrimination against the FDOC.
Finally, although the district court was not required to make a ruling as to
pretext, it did not err when it determined, in the alternative, that the FDOCs
explanation for its termination of Roxbury-Smellies employment was not
pretextual.

First, because Roxbury-Smellie had not identified any valid

comparators, she did not demonstrate that the FDOC treated other employees
outside of her protected class who engaged in similar conduct more favorably.
Second, even though Roxbury-Smellie denied that she had conducted herself in a

manner unbecoming to a public official, she did not claim that the FDOCs version
of the incident at issue was a fabrication nor did she argue that her supervisors did
not have a good faith belief that her statements were threatening. See Jones v.
Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989) (holding even if a Title VII
claimant did not in fact commit the violation . . . an employer successfully rebuts
any prima facie case of disparate treatment by showing that it honestly believed the
employee committed the violation).
For these reasons, the district court did not err in granting summary
judgment on Roxbury-Smellies Title VII disparate treatment claim.
AFFIRMED.